Lesser Included Offences
Lesser included offences
A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.
This authority comes from s. 662(1):
Offence charged, part only proved
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted
- (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
- (b) of an attempt to commit an offence so included.
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38.
The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."
The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply." This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."
All essential elements to the included offence must be found within the primary offence.
There are three ways in which an offence can be included in a charge:
- offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
- offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault;
- offences which become included by the addition of apt words of description in the principle charge.
- R v GR, 2005 SCC 45 (CanLII) at para 25
R v DeSousa, 2016 ONSC 2745 (CanLII), at para 85
DeSousa, ibid. at para 86
R v Simpson (1981), 20 C.R. (3d) 36, 58 CCC (2d) 122 (ON CA) (*no link), at para 27
R v Beyo, 2000 CanLII 5683 (ON CA), 47 O.R. (3d) 712, at para 29
R v Pelletier, 2012 ONCA 566 (CanLII) at para 106 per Watt JA
- GR, supra at para 29
Pelletier, ibid. at para 105
Lesser Offence Examples
Aggravated Assault is a lesser included offence of attempted murder.
Mischief and Break and Enter
Mischief is not included in break and enter